Appeal No. UKEAT/0085/11/RN

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

	At the Tribunal
	On 2 September 2011
	   Judgment handed down on 24 January 2012

Before
HIS HONOUR JUDGE DAVID RICHARDSON
MR D BLEIMAN
MR D G LEWIS

MR N ROBERTS	APPELLANT

NORTH WEST AMBULANCE SERVICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR DAVID N JONES
(of Counsel)
Instructed by:
Messrs Stachiw Bashir Green Solicitors
The Old Bank Building
499 Great Horton Road
Bradford
BD7 4EG	
For the Respondent	MR TERENCE RIGBY
(of Counsel)
Instructed by:
Hempsons Solicitors
The Exchange
Station Parade
Harrogate
HG1 1DY	

SUMMARY
DISABILITY DISCRIMINATION – Reasonable adjustments

The Tribunal misapplied section 4A of the Disability Discrimination Act 1995 by holding that the provision, criterion or practice in question was not applied to the Claimant, and therefore that no duty was owed to him under section 4A.  The Tribunal should have followed the statutory wording and asked whether a provision, criterion or practice applied by the Respondent placed the Claimant at a substantial disadvantage in comparison with persons who are not disabled.  A provision, criterion or practice applied by the Respondent may affect a disabled person without being directly applied to him.

HIS HONOUR JUDGE DAVID RICHARDSON 

1.	This is an appeal by Mr Nathan Roberts (“the Claimant”) against a judgment of the Employment Tribunal sitting in Manchester (Employment Judge Slater presiding) dated 23 July 2010.  By its judgment the Tribunal held that his complaints of unfair dismissal and disability discrimination were not well founded.  These complaints were brought against his former employer the North West Ambulance Service NHS Trust (“the Respondent”).

2.	At a hearing under rule 3(10) of the Employment Appeal Tribunal Rules 1993 one ground was permitted to proceed to a full hearing.  This ground concerns the Tribunal’s approach to the question whether the Respondent failed to make reasonable adjustments for the Claimant, contrary to section 4A of the Disability Discrimination Act 1995.

The background facts
3.	The Claimant was at all material times a disabled person for the purposes of the Disability Discrimination Act 1995.  He suffered from a psychiatric condition, described in one medical report as social anxiety disorder.  He was employed by the Respondent as an emergency medical dispatcher between 18 January 2008 and 1 January 2010 when he resigned.  He disclosed his disability (in layman’s terms) when he was appointed.

4.	The Claimant worked in a control room with other medical dispatchers.  There were 24 work stations in the room.  The dispatchers “hot-desked” – that is to say, they took any available work station.  The dispatchers worked on a complicated shift system, with various changeover times and overlapping shifts.

5.	Initially the Claimant chose to sit in the middle row in the control room.  But there came a time when, after periods off work with anxiety, he said that he thought his anxiety may be due to his location.  He asked to sit in a less prominent location, at the back wall next to a window.  On 14 May 2009 the Respondent wrote a letter to managers asking them to ensure that when the Claimant was on duty he was able to sit in that position and if necessary to reserve the position for his arrival.

6.	As the Tribunal found, the preferred seat was not always available for the Claimant when he arrived for work.  In August 2009 an agreement was reached that a reserved sign should be put on the desk.  No reserved sign was ever put on the desk; as the Tribunal found, it would have been impractical to reserve the seat for the shift prior to the arrival of the Claimant because there was a need at busy times to use all or most of the seats to accommodate staff working overlapping shifts.

7.	Thus, as the Tribunal found, supervisors took proactive steps where possible to have the seat available for the Claimant before he arrived; but sometimes the preferred seat was not available when he arrived and supervisors moved the occupant.  For example, the Tribunal found that there were three occasions when the preferred seat was not available and either the Claimant or a supervisor asked the occupant to move.  The last of these occasions was on 31 December, when a trainer and two people sitting in adjoining seats moved.  The Claimant began to write his letter of resignation that very evening.

8.	We have outlined the facts relating to the “hot desking” issue because it is central to this appeal.  But it should be borne in mind that the Claimant had another complaint relating to the lighting of his workplace which was rejected by the Tribunal.

The Tribunal hearing and reasons
9.	The Tribunal heard the Claimant’s case for 3 days in July 2010.  The Claimant’s case was that the requirement to “hot desk” was a provision criterion or practice applied by the Respondent which placed him at a substantial disadvantage in comparison with non-disabled people, and that the Respondent had not made reasonable adjustments.

10.	The Tribunal had some medical evidence concerning the Claimant from consultant psychiatrists.  There was a report by Dr Dierckx dated 25 November 2009.  The Tribunal mentioned this report in its reasons, saying that it “included reference to avoidance and inducing others to collude in this avoidance, such as concessions to allow the claimant to function daily”.

11.	There was also a report by Dr Faith.  She was available for cross-examination, but the Claimant’s representative did not wish to cross examine her.  The Tribunal said that it “took note” of the opinions she gave in that report.  The Tribunal summarised her opinion in its reasons.  We will quote the concluding paragraphs of it.  Dr Faith said:

“8.6 The, alleged, problems in coping with basic tasks arise from his level of dependency on others and his entrenched behaviour pattern of engaging others to collude in behaviours aimed at reducing stress on him by allowing increasing avoidance of all responsibility.
8.7 In conclusion, the severity and highly complex long-term nature of problems suffered by Mr Roberts would make any external adjustments to his work environment impotent in managing his condition to allow him to continue to work.
8.8 Avoidance behaviours entrench rather than relieve Social Anxiety Disorder.  Adjustments to the work environment, ultimately would prove to be counterproductive.
8.9 I do not consider that any effective adjustment could have been made which would have resulted in Mr Roberts being able to continue work for North West Ambulance NHS Trust in the position of Emergency Medical Dispatcher.”

12.	The Tribunal summarised relevant provisions of the Disability Discrimination Act, to which we will turn in a moment.  On the question of hot-desking, its reasoning was as follows.

“55. In relation to the alleged policy of hot-desking, we conclude that the respondent did not apply this provision, criterion or practice to the claimant.  The claimant was not required to sit in any place other than his preferred seat.  Therefore, the claimant was not put at a substantial disadvantage by such a provision, criterion or practice and the duty to make reasonable adjustments did not arise in relation to this alleged provision, criterion or practice.  This is enough for this part of the claim to fail.  However, we would comment, in addition, that we conclude that the respondent acted reasonably in the steps it took to accommodate the claimant’s wish to sit in his preferred location.  It was not practicable to keep the seat free prior to the start of his shift but the respondent took reasonable steps to ensure that the seat was free by the start of the claimant’s shift.  Where possible, the supervisor took proactive steps to have the seat free before the claimant arrived but, at worst, moved the person prior to the start of the claimant’s shift so that he could start work at the beginning of his shift in his preferred seat.  We also note that the respondent had available a procedure by which the claimant could operate a trigger mechanism and have time out when feeling anxious.”

13.	The Tribunal’s finding that at worst persons were moved “prior to the start of the Claimant’s shift” needs to be read with earlier findings.  It is plain from earlier findings by the Tribunal that on a number of occasions the Claimant arrived to start work and found other persons in his seat.  In paragraph 55 the Tribunal meant, we think, that the Claimant was not obliged to start his work as a medical dispatcher until his desk was made available for him.

14.	Later the Tribunal said:

“62. We reach this conclusion without needing to rely on the argument put by the respondent that, objectively, in the opinion of Dr Faith, any adjustment would not have made any difference, accommodation making the claimant’s disorder worse rather than better.”

15.	As to the claim of constructive unfair dismissal, the Tribunal said:

“63. In relation to constructive unfair dismissal, we conclude, on balance, that the claimant resigned because he genuinely perceived the respondent had not taken steps he considered they should have done to accommodate his condition.  These steps included having his seat vacant on his arrival and switching off the lights as he requested, but they also included converting sick leave into holiday leave.  We conclude that the respondent’s conduct did not amount to a fundamental breach of contract.  We conclude that there was no breach of the implied duty of mutual trust and confidence.  The respondent acted reasonably in trying to accommodate the claimant’s perceived needs.”

The legislation
16.	At the relevant time the law concerning disability discrimination was contained in the Disability Discrimination Act 1995.  This Act has now been repealed and replaced by the Equality Act 2010; but it is the 1995 Act with which we are concerned.

17.	Section 4A(1) provided:

“4A Employers: duty to make adjustments
(1) Where -
(a) a provision, criterion or practice applied by or on behalf of an employer, or
(b) any physical feature of premises occupied by the employer,
places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.”

18.	Section 18B(1) provided –

“18B Reasonable adjustments: supplementary
(1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to -
(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;
(b) the extent to which it is practicable for him to take the step;
(c) the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;
(d) the extent of his financial and other resources;
(e) the availability to him of financial or other assistance with respect to taking the step;
(f) the nature of his activities and the size of his undertaking;
(g) where the step would be taken in relation to a private household, the extent to which taking it would –
(i) disrupt the household, or
(ii) disturb any person residing there.”

19.	Two other provisions should be mentioned.  Section 3A(2) provided that failure to comply with a duty to make reasonable adjustments was a form of discrimination for the purposes of the Act.  Section 18D(2) provided that the phrase “provision criterion or practice” included “any arrangements”.  We shall hereafter use “PCP” as shorthand for “provision criterion or practice”.

Submissions
20.	On behalf of the Claimant Mr David Jones submitted that the Employment Tribunal erred in law in paragraph 55 of its reasons.  It mistakenly directed itself that the provision criterion or practice needed to apply to the disabled person – a requirement which is not found within section 4A(1).   Hot desking was without doubt a PCP applied by the Respondent.  The Tribunal should have gone on to ask whether this PCP placed the Claimant, a disabled person, at a substantial disadvantage compared with persons who are not disabled.  Alternatively, the Tribunal could have construed the PCP of hot desking as applying to the Claimant in a broad sense.   The Tribunal’s restrictive misapplication of the words of section 4A would enable an employer to evade liability where it purported to make an adjustment but did not implement it properly – which was the Claimant’s case here.

21.	Mr Jones submitted that the Employment Tribunal should have followed the wording of section 4A(1) and the guidance given in Archibald v Fife Council [2004] IRLR 651 (at para 62, per Lady Hale) and Environmental Agency v Rowan [2008] IRLR 20 (at para 27).  If so it would have been bound to find that there was a PCP of hot desking; that it placed the Claimant at a substantial disadvantage in comparison with persons who are not disabled; and that (since the Respondent promised an adjustment but did not deliver on the promise) the Respondent failed in its duty.

22.	Mr Jones submitted that the only appropriate course was to remit the matter to a differently constituted tribunal for re-hearing on this question.  He submitted that the present Tribunal would be unable to approach the question with a fresh mind, given the conclusions it had already expressed; and that the Claimant could not be expected to have any confidence in the Tribunal to approach the matter afresh.

23.	On behalf of the Respondent Mr Terence Rigby made essentially the following submissions.

24.	Firstly, he submitted that the Tribunal did not err in its application of section 4A(1).  It was, he submitted, a finding of fact that the Respondent did not apply the PCP to the Claimant and therefore that he was not placed at a substantial disadvantage by the PCP.  He questioned whether the amended Notice of Appeal was sufficiently wide to take the point which was made by Mr Jones.  

25.	Secondly, he submitted that the Tribunal went on to find in paragraph 55 – which we have already quoted- that if there was a duty to make a reasonable adjustment, that duty was satisfied.  

26.	Thirdly, he submitted that the Tribunal was bound in any event to reach the conclusion that on the evidence of Dr Faith the adjustment  contended for would have been ineffective and counter-productive; therefore not a reasonable adjustment.  The Tribunal ought to have dismissed the claim on this further basis.  Alternatively, he submitted that the appropriate course would be for the matter to be remitted to the same Tribunal for that Tribunal to answer the question whether the Respondent had complied with the duty to make reasonable adjustments.

27.	Mr Jones replied as follows.  He submitted that the Tribunal did not, in paragraph 55 of its reasons, ask or answer the questions posed by section 4A and section 18B(1).  If the duty to make a reasonable adjustment arose, the question whether ensuring that the Claimant’s desk was free when he arrived was an adjustment which it was reasonable for the Respondent to have to make was to be assessed by reference to the criteria in section 18B(1).  It was not sufficient simply to say that the Respondent took reasonable steps to ensure that the seat was free by the start of the shift.

28.	As to the medical evidence, Mr Jones submitted that the evidence of Dr Faith was not agreed; that the Tribunal made no specific findings as to whether the evidence was accepted; that it was for the Tribunal to make its assessment on the evidence as a whole, which included evidence that the Claimant had been able to work successfully for some months when his preferred seat was generally available; and that it was no part of the role of the Appeal Tribunal to make findings on a matter of this kind.

Conclusions
29.	In our judgment the Tribunal erred in law in its application of section 4A(1) of the Disability Discrimination Act 1995.

30.	There is no doubt that hot-desking was a PCP applied by the Respondent.  It falls readily within the broad words “provision, criterion or practice”; and those words are in any event defined to include “any arrangements”: section 18D(2).

31.	The key question for the Tribunal was whether this PCP placed the Claimant, a disabled person, at a substantial disadvantage in comparison with persons who are not disabled.  If so, the Respondent would then be under a duty to take such steps as it was reasonable for it to have to take in order to prevent the PCP having that effect.   In Environmental Agency v Rowan (paragraph 27) the Appeal Tribunal emphasised the importance of following the statutory language and addressing the issues raised by the statutory language.

32.	Neither section 4A nor section 18B required the Tribunal to ask or answer the question whether the PCP applied to the Claimant.  In our judgment asking or answering this question is not necessary and will tend to obscure the real issues the Tribunal has to decide - whether the PCP placed the Claimant at a substantial disadvantage in comparison with persons who are not disabled.

33.	The Tribunal’s reasoning was that the PCP was not applied to the Claimant because he was not required to sit in any place other than his preferred seat.  However, he continued to be affected by “hot desking” because other people who were required to hot desk were still sitting in and intending to use his preferred seat when he arrived for work.   The Tribunal ought to have assessed whether this placed the Claimant at a substantial disadvantage in accordance with section 4A(1) and if so whether there were further steps which it was reasonable for the Respondent to have to take in accordance with that section read with section 18B.

34.	We think it will generally be unhelpful for a Tribunal to ask whether a PCP was applied to the disabled person.  There will, we think, sometimes be cases where PCPs which are applied to others at work place the disabled person at a substantial disadvantage even if they are not applied directly to the disabled person.

35.	In our judgment the Employment Tribunal ought to have followed the wording of the statute, asking and answering the questions which the statute posed.  The guidance set out in Environmental Agency v Rowan was and is apposite; and it was and is important to apply the criteria set out in section 4A and in section 18B.

36.	Further, we consider that the wording of the amended Notice of Appeal sufficiently raised this issue, stating that the Tribunal made an error of law in finding that the PCP of “hot desking” did not apply to him.  In any event the issue was identified in paragraph 4 of the Appeal Tribunal’s judgment at the preliminary hearing; and if we had thought it necessary we would have permitted, indeed directed, a further amendment to the Notice of Appeal.

37.	We turn to the question whether the Tribunal in effect made, within paragraph 55, a sufficient alternative finding that the Respondent complied with its duty under section 4A(1).  We do not think the Tribunal did so.   The Tribunal’s finding that the Claimant was not put at a substantial disadvantage by the PCP is linked to its finding that the PCP was not applied to him.  The Tribunal’s finding that the Respondent “took reasonable steps to ensure that the seat was free by the start of the Claimant’s shift” was not reached by means of considering and applying section 18B(1).  If it was a reasonable adjustment to ensure that the seat was free for the Claimant, then the Respondent was bound to make that adjustment, not merely to take reasonable steps to do so.

38.	We turn next to the question whether, given the medical evidence to which the Tribunal referred, the Tribunal was bound to decide the reasonable adjustment issue in favour of the Respondent.   As we have seen the Tribunal reached its conclusion without relying on this medical evidence: see paragraph 62 of the reasons, which we have quoted.

39.	The Employment Appeal Tribunal has jurisdiction to deal with questions of law.   Parliament has entrusted to employment tribunals the task of deciding all issues of fact.  If, once the law has been applied correctly, the result is plain one way or the other from facts which the Tribunal has found (or which are not in dispute), then the Appeal Tribunal may give judgment accordingly.  But if the result is not plain, then the matter must be remitted for decision by a tribunal.

40.	In this case, while we acknowledge the force of the medical evidence, we do not think we can go so far as to say that the result is plain and obvious.  It is, we think, arguable that the practice of hot-desking placed the Claimant at a substantial disadvantage in comparison with persons who are not disabled.   On the question of reasonable adjustment, the Claimant can argue that it was a reasonable adjustment for the Respondent to have to provide him with a free desk at the back of the room at the start of his shift; that this was indeed successful over a period of months in allaying his anxiety to the extent that he was able to work (see section 18B(1)(a)); that it was not difficult or expensive to make this provision (see section 18B(1)(b)-(c)); and that it was well within the resources of the Respondent to make this provision (see section 18B(1)(d)-(f)). On the other hand, it may be said for the Respondent that, in the light of the medical evidence, provision of a free desk would allay his anxiety only to a limited extent if at all; that it was not practicable for a supervisor always to be on hand to make sure the desk was free; and that the time and cost involved in ensuring that there would be no mishaps at all was not justified.  These, we think, are matters for the Tribunal to assess.

41.	We turn finally to the question whether the matter should be remitted to the same, or to a differently constituted, Tribunal. In making this judgment the Appeal Tribunal applies guidance set out in Sinclair Roche & Temperley v Heard [2004] IRLR 763 at para 46, EAT, approved by the Court of Appeal in Barke v SEETEC Business Technology Centre Ltd [2005] IRLR 633.   In this case we are satisfied that the Tribunal, with the guidance offered in this judgment, will approach the matter professionally and in accordance with the statutory provisions, applying section 4A and section18B; that it will look afresh at the matter and be prepared to reconsider the claims before it and reach fresh conclusions.  Assuming the existing Tribunal can be reconstituted, we consider that this is the just and proportionate course to take.

42.	We regret the delay in handing down this judgment; the reasons have been explained to the parties.